Univ. of Hous. Sys. v. Jim Olive Photography

Decision Date11 June 2019
Docket NumberNO. 01-18-00534-CV,01-18-00534-CV
Citation580 S.W.3d 360
Parties UNIVERSITY OF HOUSTON SYSTEM, Appellant v. JIM OLIVE PHOTOGRAPHY, d/b/a Photolive, Appellee
CourtTexas Court of Appeals

Ken Paxton, Attorney General of Texas, Andrew B. Davis, Office of the Attorney General, P.O. Box 12548 (MC 059), Austin, TX 78711-2548, for Appellant.

David M. Gunn, Joe W. Redden, Jr., Owen J. McGovern, Beck Redden LLP, 1221 McKinney, Ste., 4500, Houston, TX 77010, for Appellee.

Panel consists of Chief Justice Radack and Justices Higley and Hightower.

Richard Hightower, Justice

In this interlocutory appeal from the trial court's denial of a plea to the jurisdiction, we must determine if a viable constitutional takings claim can be asserted when the State commits copyright infringement. We conclude that a governmental unit's copyright infringement is not a taking and that the trial court therefore erred in denying the plea to the jurisdiction.


Jim Olive Photography d/b/a Photolive, Inc. (Olive) sued the University of Houston System, alleging an unlawful taking and seeking just compensation under Article I, Section 17 of the Texas Constitution and under the Fifth Amendment of the United States Constitution. Olive, a professional photographer, alleges that he took a series of aerial photographs of the City of Houston at dusk in 2005. To take these photographs, Olive rented a helicopter, hired a pilot, and, utilizing special photography equipment, suspended himself from the helicopter with a harness. While suspended in the harness, Olive took photograph SKDT1082"The Cityscape"—the subject of this litigation.

Olive registered The Cityscape with the United States Copyright Office on November 18, 2005 and displayed it for purchase on his website. Olive owned all rights associated with The Cityscape, and his website had numerous references to licensing the website's photographs, including an entire page labeled "Copyrights and Usage," which described the applicable copyright protections held in the photographs and explicitly stated that "[t]he unauthorized use of these images is strictly prohibited."

Olive alleges that sometime around June of 2012, the University of Houston downloaded The Cityscape from Olive's website, removed all identifying copyright and attribution material, and displayed it on several webpages to promote the University's C.T. Bauer College of Business. The University never contacted Olive about using his photograph and never compensated him for its use.

Over three years later, Olive discovered that his photograph was being displayed on the University's Bauer College of Business webpages. Olive informed the University of its unauthorized use of the photograph and demanded that it cease and desist this use. The University immediately removed the photograph from the College's website. Olive further alleges that the University's display of the photograph without attribution allowed private actors such as Forbes Magazine to republish and display The Cityscape without Olive's permission and without compensation.

Upon being sued by Olive, the University filed a plea to the jurisdiction, asserting, among other things, that because Olive failed to plead a viable takings claim, the University retains governmental immunity and the trial court lacks subject-matter jurisdiction. The trial court denied the plea, and this interlocutory appeal followed.

The University argues in four issues that the trial court erred in denying its plea. The University first argues that a copyright is not property under the federal or state takings clauses. The University then argues that, if a copyright is property under the federal or state takings clauses, its copyright infringement of Olive's photograph is not a taking, that it lacked capacity to take Olive's copyright property, and that Olive did not sufficiently plead an intentional taking.

Standard of Review

The standard of review of a trial court's ruling on a plea to the jurisdiction based on governmental immunity is de novo. See Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 225–26 (Tex. 2004) ; Tex. So. Univ. v. Gilford , 277 S.W.3d 65, 68 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). The plaintiff has the burden to allege facts that affirmatively demonstrate the trial court's subject-matter jurisdiction. Gilford , 277 S.W.3d at 68 (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 446 (Tex. 1993) ). We construe the pleadings liberally and accept the plaintiff's factual allegations as true. See Miranda , 133 S.W.3d at 226–27 ; Gilford , 277 S.W.3d at 68.

An inverse-condemnation action is a constitutional claim in which the property owner asserts that a governmental entity intentionally performed acts that resulted in a "taking" of the property for public use, without formally condemning the property. See, e.g. , Tarrant Reg'l Water Dist. v. Gragg , 151 S.W.3d 546, 554 (Tex. 2004). The Texas Constitution's takings clause ( Article I, Section 17 ) includes personal property. Renault, Inc. v. City of Houston , 415 S.W.2d 948, 952 (Tex. Civ. App.—Waco 1967), rev'd on other grounds , 431 S.W.2d 322 (Tex. 1968). It is well settled that the Texas Constitution waives governmental immunity for an inverse-condemnation (a takings) claim, but in the absence of a properly pleaded takings claim, the governmental entity retains immunity. City of Houston v. Carlson , 451 S.W.3d 828, 830 (Tex. 2014).

Whether the pleaded facts constitute a viable takings claim is a question of law. See Tex. Parks & Wildlife Dep't v. Sawyer Trust , 354 S.W.3d 384, 390 (Tex. 2011) ; Mayhew v. Town of Sunnyvale , 964 S.W.2d 922, 932–33 (Tex. 1998) ; City of Friendswood v. Horn , 489 S.W.3d 515, 525 (Tex. App.—Houston [1st Dist.] 2016, no pet.). When the plaintiff cannot establish a viable takings claim, the trial court lacks subject-matter jurisdiction and should grant a plea to the jurisdiction. Tex. Dep't of Transp. v. A.P.I. Pipe & Supply, LLC , 397 S.W.3d 162, 166 (Tex. 2013).


Copyright generally

Federal copyright law provides that "[c]opyright protection subsists ... in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. § 102(a).

Copyright has been defined as:

The right to copy; specifically, a property right in an original work of authorship (including literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, and architectural works; motion pictures and other audiovisual works; and sound recordings) fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work.

Copyright , BLACK'S LAW DICTIONARY (10th ed. 2014); see also 17 U.S.C. § 102(a) (1–8) (providing categories of works of authorship to include literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works).

A copyright in a work subsists from its creation and generally endures for the life of the author and 70 years after the author's death. See 17 U.S.C. § 302(a). Civil remedies for copyright infringement include injunctive relief. 17 U.S.C. § 502(a). A copyright owner can also seek money damages from an infringer: either (1) his actual damages and any additional profits of the infringer, or (2) statutory damages, including a sum of not more than $ 150,000 for willful infringement.1 See 17 U.S.C. § 504. Federal courts have original and exclusive jurisdiction of copyright claims, 28 U.S.C. § 1338(a), and all state-law claims arising under federal law relating to copyrights are preempted by federal law. 17 U.S.C. § 301(a) ; see Butler v. Cont'l Airlines, Inc. , 31 S.W.3d 642, 648–52 (Tex. App.—Houston [1st Dist.] 2000, pet. denied).

In the case of copyright infringement by a state actor, states have Eleventh Amendment immunity from a suit for money damages in federal court. See Chavez v. Arte Publico Press , 204 F.3d 601, 607–08 (5th Cir. 2000) ( Chavez III ) (discussed below) (in copyright-infringement action against University of Houston, holding that Copyright Remedy Clarification Act (CRCA), 17 U.S.C. § 511, which purported to abrogate Eleventh Amendment immunity and to provide for state liability for copyright infringement, was unconstitutional); see also Allen v. Cooper , 895 F.3d 337, 347–54 (4th Cir. 2018) (same), pet. for cert. filed , ––– U.S. ––––, 139 S.Ct. 2664, 204 L.Ed.2d 1068, 2019 WL 134012 (U.S. Jan. 4, 2019) (No. 18-877) ; Nat'l Ass'n of Bds. of Pharmacy v. Bd. of Regents of Univ. Sys. of Ga. , 633 F.3d 1297, 1312–19 (11th Cir. 2011) (same); Richard Anderson Photography v. Brown , 852 F.2d 114, 120 (4th Cir. 1988) (holding that state university had Eleventh Amendment immunity against photographer's copyright-infringement action). See generally 3 MELVILLE B. NIMMER & DAVID NIMMER , NIMMER ON COPYRIGHT § 12.01[E][2] (Rev. Ed. 2019); 6 WILLIAM F. PATRY , PATRY ON COPYRIGHT § 21.88 (Mar. 2019). But a copyright owner can obtain prospective injunctive relief for copyright infringement by a state actor under the Ex parte Young doctrine.2 See, e.g. , Nat'l Ass'n of Bds. of Pharmacy , 633 F.3d at 1307–12 (addressing claim for injunctive relief under Ex parte Young doctrine against state university for ongoing copyright infringement); Hairston v. N.C. Agric. & Tech. State Univ. , No. 1:04 CV 1203, 2005 WL 2136923, at *8 (M.D.N.C. Aug. 5, 2005) ("[T]he court finds that Plaintiff sufficiently alleges an ongoing violation of federal copyright law by Defendants, and the Ex parte Young doctrine therefore applies to his copyright infringement claim seeking prospective injunctive relief from Defenda...

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3 cases
  • Jim Olive Photography v. Univ. of Hous. Sys.
    • United States
    • Texas Supreme Court
    • June 18, 2021
    ...infringement is not a taking and that the trial court therefore erred in denying the plea to the jurisdiction." 580 S.W.3d 360, 363 (Tex. App.—Houston [1st Dist.] 2019). Because we agree that the violation of a copyright, without more, is not a taking of the copyright, we affirm.IJim Olive ......
  • Can. Hockey LLC v. Tex. A&M Univ. Athletic Dep't
    • United States
    • U.S. District Court — Southern District of Texas
    • September 4, 2020
    ...whether under the Takings Clause or state tort law." (Doc. No. 102 at 15). See also Univ. of Hous. Sys. v. Jim Olive Photography , 580 S.W.3d 360, 377 (Tex. App.—Houston [1st Dist.] 2019, pet. filed) (holding that a copyright is not "property" for purposes of the Takings Clause in the Texas......
  • In re Interest of P.N.T.
    • United States
    • Texas Court of Appeals
    • June 11, 2019

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